No. 13-1523

In The Supreme Court of the United States

_______________

Mark Warren Peary as Personal Representative of the Estate of Joseph Shuster, et al., Petitioners

v.

DC Comics, Respondent

_______________

on petition for a writ of certiorari
to the united states court of appeals

for the ninth circuit

_______________

BRIEF OF AMICI CURIAE THE SOCIETY OF CHILDREN’S BOOK WRITERS AND ILLUSTRATORS, THE NATIONAL WRITERS UNION, THE SCIENCE FICTION FANTASY WRITERS OF AMERICAAND THE GRAPHIC ARTISTS’ GUILD
IN SUPPORT OF PETITIONERS

_______________

Daniel B. Lifschitz Lowe & Associates 11400 Olympic Blvd. Suite 640 Los Angeles, CA  90064 (310) 477-5811 Counsel for amici curiae

Steven W. Smyrski   Counsel of Record Smyrski Law Group, A P.C. 3310 Airport Ave., SW Santa Monica, CA 90405 (310) 397-9118 steve@smyrski.com

 

 

INTERESTS OF AMICI CURIAE[1]

The following amici curiae respectfully submit this brief pursuant to Supreme Court Rule 37 in support of Petitioners.

The Society of Children’s Book Writers and Illustrators (SCBWI) is a non-profit organization and the only professional organization specifically for those individuals writing and illustrating for children and young adults in the fields of children’s literature, magazines, film, television, and multimedia. There are currently more than 22,000 members worldwide, in over seventy regional chapters, making it the largest children’s writing organization in the world. Its members include New York Times bestselling Authors, Newberry Medal recipients, and household names like Judy Blume and Tomie DePaola. SCBWI joins this brief as part of its mission to effect important changes within the field of children’s literature and as a powerful force in promoting new copyright legislation, equitable treatment of authors and artists, and fair contract terms. 

The National Writers Union (NWU) was founded in 1981 and represents freelance writers in all genres, formats, and media in 13 local chapters nationwide. Its more than 1,200 members include journalists, book authors, poets, and business writers. The NWU works to advance the economic and working conditions of writers by lobbying for legislation that protects writers’ rights, promoting viable alternatives to unfair practices, and educating the public. In the past 15 years, NWU has witnessed the increasing disenfranchisement of writers, due in part to the consolidation of ever-larger corporate entities and the advent of technologies that facilitate the exploitation of a writer’s work. NWU joins this brief to protect its members from unscrupulous employers that misuse writers’ work and demand their rights.

Science Fiction and Fantasy Writers of America (SFWA) is a professional organization for authors of science fiction, fantasy and related genres. Founded in 1965, esteemed past members include Ray Bradbury, Isaac Asimov, Anne McCaffrey, and Andre Norton. Today, SFWA is home to over 1800 authors, artists, and allied professionals, and is widely recognized as one of the most effective non-profit writers’ organizations in existence. Each year the organization presents the prestigious Nebula Awards® for the year’s best literary and dramatic works of speculative fiction. SFWA joins this brief as part of its dedicated effort to inform, support, promote, defend and advocate for its members.

The Graphic Artists Guild (GAG) was founded in 1967 to promote and protect the social, economic and professional interests of its members, which include animators, cartoonists, designers, illustrators, and digital artists.  Through its national network in five regions seven chapters, GAG connects design and illustration professionals of all disciplines interested in their own career development, skills enhancement, and industry knowledge. GAG also helps members protect and advance their careers by advocating for fair treatment and delivering practical advice. GAG joins this brief as part of its commitment to improving conditions for all graphic artists and raising standards for the entire industry.

In the instant case, Petitioners have demonstrated in detail the error of the Ninth Circuit’s ruling and analyzed the conflicts of authority justifying this Court’s intervention. Amici agree with Petitioners that the clear text of the Copyright Act requires this Court to intervene and resolve the conflict of law that the Ninth Circuit has created through its contrary decisions, as the decision below directly impedes the clear and uniform application of a federal body of law. The case below provides a clean vehicle for resolving the conflict, as the elimination of the Copyright Act’s termination right was dispositive of Petitioners’ claim.

SUMMARY OF ARGUMENT

In 2012, Judge William A. Fletcher of the Ninth Circuit Court of Appeals wrote, with no small amount of self-awareness, that “[o]ur circuit is the most hostile to copyright owners of all the circuits.” Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946, 958 (9th Cir. 2012). This observation, which spiritually succeeds Chief Justice Alex Kozinski’s quip that, “for better or worse, we are the Court of Appeals for the Hollywood Circuit” (White v. Samsung Electronics America, Inc., 989 F.2d 1512, 1521 (9th Cir. 2003)), neatly encapsulates the struggle that plaintiffs in the Ninth Circuit endure simply to exercise and protect their statutory rights under the Copyright Act. These rights, guaranteed to authors by federal law, inevitably and repeatedly take a backseat to the business interests of the entertainment industry in the Ninth Circuit, resulting in contradictory case law and ultimately unintelligible legal doctrines.

At issue in the present case is the termination right under 17 U.S.C. §304(c) covering transfers of the extended copyright renewal term. Quite simply, under what circumstances, if any, can the statutory termination right be contractually destroyed?

Under §304(c)(5), the termination of a copyright grant “may be effected notwithstanding any agreement to the contrary…” (emphasis added). Such clear and unambiguous language demonstrates Congress’s intent to categorically prevent the divestment of the statutory termination interest. See Marvel Characters Inc. v. Simon, 310 F.3d 280, 290 (2d Cir.2002) (“the clear Congressional purpose behind § 304(c) was to prevent authors from waiving their termination right by contract”) (citing Stewart v. Abend, 495 U.S. 207, 230, (U.S. 1990)). Anything contrary to this rule, it was warned, would allow “litigation-savvy publishers” to use their superior bargaining power to compel such waivers from authors, thus rendering § 304(c) a “nullity.”  Simon, 310 F.3d. at 290-91.

Apparently unwilling to heed this warning, the Ninth Circuit created a significant exception to § 304(c)(5) in Milne v. Stephen Slesinger, Inc., 430 F.3d 1036 (9th Cir.2005), holding that where a statutory heir uses “the leverage of imminent vesting [of a termination right] to revoke [a] pre-1978 grant and enter into a highly remunerative new grant of the same rights … it [is] tantamount to following the statutory formalities, and achieve[s] the exact policy objectives for which [the termination right] was enacted.” Classic Media, Inc. v. Mewborn, 532 F.3d 978, 987 (9th Cir. 2008), citing Milne, 430 F.3d at 1044-45.

On a purely functional level, Milne and its progeny represent a disturbing development in copyright law, as they attempt to replace a clear, categorical federal statute with a subjective judicial balancing test under state contract law. Adding insult to injury, these cases also replace the judgment of Congress with that of district court judges. Nimmer on Copyright, the nation’s preeminent copyright treatise, has labeled Milne an evisceration of Congress’s intent: “Notwithstanding the broad and transparent meaning of the word ‘any’ in the statutory language, explicated unmistakably in its legislative history,” writes Professor Nimmer, the Milne decision and its subsequent Second Circuit counterpart “invite grantees to engage in all manner of opportunistic behavior to frustrate Congress’s clearly expressed language and intent.” Melville Nimmer and David Nimmer, Nimmer on Copyright (“Nimmer”) § 11.07[A].

In this case, the Ninth Circuit appears even less beholden to the “policy objectives” of § 304(c)(5) than before. In Milne, the situation expressed by the Ninth Circuit exception was that of an author or heir who, on approaching the date for exercising his or her termination rights, used the threat of such termination rights as leverage to renegotiate an existing contract for distribution rights to the author’s book, for example. Here, there was no termination right wielded and no leveraged renegotiation attempt, only a simple quitclaim in a 1992 pension agreement with the author’s siblings, who lacked any rights whatsoever under the Copyright Act. This was further reflected in their wholly unremunerative compensation – a meager pension increase from $5,000 to $25,000, dwarfed by the joint copyright interest in the billion-dollar Superman franchise held to have been impliedly relinquished. Yet by working backwards, the Ninth Circuit deprived the author’s later-probated estate of its statutory termination rights provided in the 1998 Copyright Term Extension Act (“CTEA”). 

The Ninth Circuit, under the color of law, decided to retroactively gift to the author’s quitclaiming siblings copyrights they did not and could not possess in 1992, have these siblings simultaneously assign those copyrights back to Superman’s publisher (which already owned them) by reading such terms into a contract that states none of this on its face, all in clear contravention of § 304(c)(5) and Congress’s unmistakable objective to protect the termination right.

While certainly alarming, the opinion rendered in this case is not entirely surprising. The Ninth Circuit purporting to “know best” in the face of contrary controlling law has a tendency to bend legal doctrines in result-oriented decisions to subvert the claims of author-litigants, a well-known phenomenon to those familiar with Ninth Circuit copyright jurisprudence. In fact, the Ninth Circuit has not yielded a victory for a copyright plaintiff against a studio or network defendant in well over twenty years. Other casualties of the Ninth Circuit’s outcome-oriented copyright jurisprudence beyond termination rights include its dilution of the tests for copyright protection mandated by this Court, diminution of the longstanding rules for evaluating substantial similarity between copyrighted works, and subversion of the essential role of the fact-finder in evaluating copyright infringement claims.

By relegating all these aspects of copyright litigation to judicial discretion, the Ninth Circuit has sacrificed canonical principles of copyright law for the sake of judicial economy, providing inadequate guidance to lower courts deciding copyright cases. Because authors and artists lack the resources of major conglomerates in the entertainment industry, they have little hope of reversing this ongoing trend within the Ninth Circuit. This Court should take this opportunity to rein in the Ninth Circuit’s extreme hostility to copyright plaintiffs, and uphold Congress’s clear intent to protect the rights of authors.

ARGUMENT

 

1. The Copyright Act Categorically Prevents The Contractual Relinquishment Of Termination Rights

 

1. The Ninth Circuit’s Decision in Milne v. Slesinger Weakened an Unequivocal Statute and Congress’s Clear Intent.

 

The termination provisions of the Copyright Act occupy a venerable position in federal law, having been explicitly fashioned by Congress to correct the historical exploitation of creative professionals by corporate entities. Mills Music, Inc. v. Snyder, 469 U.S. 153, 172-173 (1985) (“[T]he termination right was expressly intended to relieve authors of the consequences of ill-advised and unremunerative grants that had been made before the author had a fair opportunity to appreciate the true value of his work product”). To ensure the preservation of this right, Congress drafted it to be essentially inalienable. See 17 U.S.C. § 304(c)(5); William F. Patry, Patry on Copyright, § 7:46 (2014)(“[§ 304(c)(5)] is intended to make Congress’s intent as clear as humanly possible: an author cannot agree to waive his or her termination right”).

• 304(c)(5) was enacted in direct reaction to Fred Fisher Music Co. v. M. Witmark & Sons, 318, U.S. 643 (1943), which permitted the assignment of the 1909 Copyright Act’s termination right despite Congress’ intent that the termination right was to be “exclusive” to authors and their families so that they “could not be deprived of this right.” H.R. Rep. No. 60-2222, at 14-15 (1909).. Realizing that it could afford no ambiguity in the statute, Congress drafted the 1976 Copyright Act’s termination provisions with considerable clarity, explicitly establishing that successive extensions of the copyright renewal term (most recently in the CTEA) should be for the benefit of authors and their statutory successors, instead of operating as a windfall to prior grantees. See 17 U.S.C. §§ 203(a)(2), 304(c)(2), 304(c)(5) (incorporated by reference in § 304(d)(1)).

In the years since the passage of § 304, however, the lower courts have all but eviscerated the absolute nature of its protections. In Milne, the Ninth Circuit rejected the assertion that § 304(c)(5) was plain on its face, relying on a passing statement taken out of context from the 1976 Act’s legislative history that “[n]othing in the Copyright Act has altered the power of private parties to contract.” 430 F.3d at 1045.[2] The Ninth Circuit established a new exception to the clearly worded statute, determining that if an “agreement to the contrary” provides more favorable terms than an initial grant of copyright, the spirit of § 304(c)(5) is fulfilled and the inalienable termination right can be ceded. Id. at 1046. As sternly noted by Professor Nimmer, the Ninth Circuit “did not even purport to justify the basis on which it effectively deprived the statutory successors’ rights in the additional twenty years that Congress conferred in 1998.” Nimmer § 11.07[C][1].  Professor Nimmer recognized that a door Congress intended to keep permanently shut had been inexplicably opened in the Ninth Circuit Milne decision,

The Milne decision ushered in a subjective and uncertain analysis of statutory termination cases completely disconnected from the statute itself. Courts now purport to uphold the “rationale” of §304(c)(5) by taking the agreements that §304(c)(5) was intended to categorically bar, labeling them “reasonable,” stripping rights from authors and their heirs, and posturing as though they have fulfilled the Congressional mandate. A judge’s determination that an author’s trust or heir received a “better deal” through a contractual “revocation and regrant” of rights is apparently license to override the express provisions of the Copyright Act and alienate that which Congress unequivocally made “inalienable.”  N.Y. Times Co. v. Tasini, 533 U.S. 483, 496 n.3 (2001) (noting the “inalienable authorial right to revoke a copyright transfer”); see also id, at 497; Stewart v. Abend, 495 U.S. 207, 230 (1990)( “[t]he 1976 Copyright Act provides a single, fixed term, but provides an inalienable termination right.”).

2. The Ninth Circuit’s Ruling BelowIs Unsupported In Law And Fact.

The Ninth Circuit’s ruling in the instant case clearly demonstrates why judges should not be permitted to engage in the subjective analysis encouraged by Milne. The court eliminated the exceedingly valuable termination interest of Joseph Shuster’s estate under the 1998 CTEA by holding that the author’s siblings (who held no copyrights) “implied[ly]” novated Shuster’s 1938 copyright assignment to DC Comics in a perfunctory 1992 pension agreement containing a boilerplate quitclaim and settlement of any rights “which [the siblings] may have.” DC Comics v. Pac. Pictures Corp., 545 Fed. Appx. 678, 681-82 (9th Cir. 2013).

The problems with this decision are numerous, starting with the fact that no party to the 1992 agreement possessed termination rights at the time of its execution, as an author’s siblings have never held such rights under the Copyright Act. Under § 304(c)(2), the right to terminate a deceased author’s grant in the absence of a widow, child, or grandchild is limited to “the author’s executor, administrator, personal representative, or trustee,” but the termination rights of an executor did not subsist until the CTEA extended those rights to this class of beneficiaries in 1998, six years after the agreement in question.

Thus, the decision below leapfrogged even Milne’s justification for upholding an “agreement to the contrary” in spite of § 304(c)(5). In this case, no “leverage of imminent vesting” existed, and no statutory heir used this “to revoke the pre-1978 grant and enter into a highly remunerative new grant of the same rights[.]” 430 F.3d at 1044-45. Here,the Ninth Circuit simply disregarded § 304(c)(5)’s mandate altogether.

With the understanding that no one was entitled to any termination rights in 1992, the Ninth Circuit’s conceptualization of this case becomes even less plausible, as no conceivable reason existed for DC Comics to exchange its clear chain-of-tile from the author of Superman himself for a mere quitclaim and release from the author’s unempowered siblings. It is just as implausible, in light of Superman’s astronomical asset value and the sophistication of the Respondent, that such an intention (if honestly held) would not have been clearly articulated in the 1992 agreement Respondent drafted. The document completely fails to mention the author’s original contract which it purportedly extinguished, and omits the Superman property allegedly being regranted. To “imply” a revocation and regrant, the court of appeals gratuitously read all of the preceding elements into an otherwise-trifling pension agreement and did so on summary judgment when everything pointed to the fact that this surely was no one’s intent in 1992..

 

The Ninth Circuit’s disinterest in an accurate appraisal of the parties’ actions is further reflected in its failure to meaningfully consider that Shuster’s siblings lacked the legal capacity to revoke his contracts and/or re-grant his copyrights. Stating that “[t]he factual and legal dispute regarding whether Joseph Shuster’s sister acted as his executor when she signed the 1992 Agreement is a potentially complex one,” the Court chose to simply disregard this critical issue in a dismissive footnote. DC Comics, 545 Fed. Appx. at 681, n.3. The dissent, however, cut through these supposed complexities quite easily: “there is no indication in the 1992 Agreement that the prior agreement was extinguished by the new agreement. There is no statement to that effect in the 1992 Agreement in fact, the prior copyright grant is not referenced at all. … Further, this record is not sufficient to establish that Joe Shuster’s siblings [even] had the authority in 1992 to revoke and supersede his 1938 copyright grant[]” as “Joe’s estate hadn’t [yet] been probated”.  Id at 683.

The opinion of the Ninth Circuit majority should be seen by this Court for what it is: a complete disregard not only of § 304(c)(5) and Congress’ clear intent, but of the Federal Rules of Civil Procedure as well.. In order to deprive the Shuster estate of its invaluable statutory termination interest, the Ninth Circuit, on summary judgment, ignored all of the logical inferences described above, when it was required to view the evidence, including that agreement, in the light most favorable to Petitioners, the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986).  This, combined with the Ninth Circuit’s cherry-picking of issues and selective quotation of the 1976 Act’s legislative history at the expense of the Act’s clear and explicit text, gives the Ninth Circuit’s opinion all the hallmarks of results-oriented jurisprudence.

 

1. The Ninth Circuit’s Decision is Symptomatic of a Broader Hostility to Copyright Plaintiffs.

This Court should review Petitioners’ writ fully aware not only of the injustice that occurred in this case, but just how common such injustice is for copyright plaintiffs in the Ninth Circuit. The subjective analysis permitted by Milne and conducted in the instant case is representative of a template that applies across much of Ninth Circuit copyright jurisprudence.

Perhaps the most glaring example of the Ninth Circuit skewing copyright law in favor of defendants is its subversion of this Court’s ruling on standards for copyright protection in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). In Feist, the Court explained that, although copyright law does not generally protect basic elements of creative works (such as characters, generic plot premises, or stock scenes), the original “selection and arrangement” of such elements is protectable. Feist 490 U.S. at 348. In fact, a long line of Ninth Circuit case law supported an identical notion, both before and after Feist.[3]

At the same time that the Ninth Circuit purports to support the selection and arrangement test, however, it has also established a preemptive “screening” test that fundamentally contradicts Feist by “filter[ing] out and disregard[ing]” all individually unprotected elements from works before comparing them, removing all the constituent elements of any protectable selection or arrangement.[4] Attempts to harmonize the conflicting tests[5] ultimately resulted in the Ninth Circuit intimating that it would only consider protecting a plaintiff’s work by selection and arrangement if the defendant admitted that he or she had access to the plaintiff’s work.[6] Essentially, this Court’s ruling in Feist has been overruled in the Ninth Circuit in the absence of such a confession, which is rarely obtained.[7]

The subversion of Feist becomes even more problematic when taken in conjunction with the Ninth Circuit’s rejection of the traditional directive that when analyzing an infringement claim, judges are to only compare the similarities between works.[8] This directive was borne from an understanding that “no plagiarist can excuse the wrong by showing how much of his work he did not pirate,”[9] as even a quantitatively unimpressive similarity can be qualitatively important to a plaintiff’s work.[10] According to recent Ninth Circuit decisions, however, that a defendant’s work contains “greater, more significant differences” than similarities is now a viable defense to copyright infringement.”[11]

By denying use of the selection and arrangement test and permitting dissimilarity to overshadow similarity, the Ninth Circuit has effectively insulated copyright defendants from not only infringement verdicts, but trials altogether. Experts and juries have no role to play in this process, as even though the Ninth Circuit reluctantly acknowledges the maxim that “summary judgment is not highly favored on the substantial similarity issue in copyright cases,”[12] the overwhelming majority of copyright cases are dismissed as a matter of law on exactly that issue.[13] The province of the jury – to resolve material issues of fact created by conflicting testimony[14] – has been appropriated by the court, which now functions as a collective of judicial officers and literary critics.[15]

In copyright infringement cases, the judiciary’s purpose is to play the role of gatekeeper to the jury. Its task in analyzing substantial similarity is supposed to be extrinsic–that is, objective.[16] If a plaintiff can show objective similarity, a jury is brought in to determine whether the total concept and feel—the intrinsic test—of the plaintiff’s and defendant’s works are substantially similar.[17] In practice, however, the extrinsic test has been devoured by an intrinsic test performed by the judge, who commands a body of case law so internally inconsistent that the standard of review is chosen rather than adhered to.

1. Ninth Circuit Plaintiffs Have Been All But Forced To Abandon Copyright Claims as a Result of These Creative Rulings.

The cumulative effect of defendant-friendly rulings such as the decision below and those outlined above has been a dramatic pro-defendant tilt in copyright litigation within the Ninth Circuit. Studios and networks have won every one of the dozens of copyright infringement cases litigated to final judgment in the Ninth Circuit since 1990, to the best of counsel’s knowledge and research, usually on summary judgment or earlier.[18] As a result, authors are now forced to contort and repackage their claims under state law, such as implied-in-fact contract law, to avoid the Ninth Circuit’s obvious hostility to copyright claimants.

* * * *

In the case before the Court, the Ninth Circuit’s denial of Petitioners’ termination right despite multiple red flags in Respondents’ case continues the modern hostile trend of the Ninth Circuit against copyright plaintiffs. The blueprint established for easy circumvention of the termination right disregards the plain text of the statute, flouts Congress’s clear objectives, and injects profound uncertainty into the reliability of the termination provisions. As a result, the intended beneficiaries of the termination statute now find themselves beholden to the same state-based contract law Congress preempted in the first place. Clear guidance for all parties on the scope of §304(c)(5) is warranted.

CONCLUSION

For the foregoing reasons, as well as for the reasons stated in the petition, the petition for writ of certiorari should be granted.

Respectfully submitted,

Daniel B. Lifschitz Lowe & Associates 11400 Olympic Blvd. Suite 640 Los Angeles, CA 90064 (310) 477-5811 Counsel for amici curiae

Steven W. Smyrski  Counsel of Record Smyrski Law Group, A P.C. 3310 Airport Ave., SW Santa Monica, CA 90405 (310) 397-9118 steve@smyrski.com

[1] Pursuant to Supreme Court Rule 37.6, counsel for amicus certify that no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus made such a monetary contribution. The parties have been given at least ten days’ notice of amicus curiae’s intention to file this brief and both parties have consented to the filing.

[2] Not only is the statement not actually in the legislative history (see H. Rep. p.128), but Nimmer On Copyright notes that the actual quote of the legislature only references the 35-year termination window under § 203 and “is structurally inapplicable to § 304(c), which allows one and only one termination window, maturing after the passage of fifty-six years.” §11.07[D][4][c][i]

[3] See Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970); United States v. Hamilton, 583 F.2d 448 (9th Cir. 1978); Shaw v. Lindheim, 919 F.2d 1353, 1363 (9th Cir. 1990); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000); Fleener v. Trinity Broad. Network, 203 F. Supp. 2d 1142 (C.D. Cal. 2001); Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003); Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004).

[4] Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002).

 

[5] See Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002) (distinguishing Cavalier and permitting protection by selection and arrangement).

[6] Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1179 (9th Cir. 2003) (“[O]ur decision in Metcalf was based on a form of inverse ratio rule analysis: the plaintiff’s case was “strengthened considerably by [defendants’] concession of access to their works”); Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1081 n.4 (9th Cir. 2006) (declining to apply Metcalf because “this is not a circumstance in which the defendant has conceded access to the purportedly copied material”). Funky Films, 462 F.3d, at 1078.

[7] 4-13 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.02[A] (Matthew Bender, Rev. Ed. 2012) (“Just as it is virtually impossible to offer direct proof of copying, so it is often impossible for a plaintiff to offer direct evidence that defendant (or the person who composed defendant’s work) actually viewed or had knowledge of plaintiff’s work. Such viewing will ordinarily have occurred, if at all, in a private office or home outside of the presence of any witnesses available to the plaintiff.”)

[8] See, e.g., Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994).

 

[9] Shaw, 919 F.2d at 1362 (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F. 2d 49, 56 (2d Cir. 1936)).

[10] See, e.g., Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir. 1987) (“Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.”); See also, Nimmer § 13.03[B][1][a], at 13-53 (“Dissimilarity is only relevant when “points of dissimilarity not only exceed the points of similarity, but indicate that the remaining points of similarity are, within the context of plaintiff’s work, of minimal importance.”) (emphasis added).

[11] Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1078 (9th Cir. 2006); Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 625 (9th Cir. 2010).

[12] See Funky Films, 462 F.3d at 1076; Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir. 1985); Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984); Shaw v. Lindheim, 809 F. Supp. 1393, 1355 (C.D. Cal. 1992).

[13] See footnote 18, infra.

 

[14] Wyler Summit P’ship v. Turner Broad. Sys., Inc. 235 F.3d 1184, 1192 (9th Cir. 2000) (“Weighing the credibility of conflicting expert witness testimony is the province of the jury.”); In re Apple Computer Sec. Litig., 886 F.2d 1109, 1116 (9th Cir. 1989) (citing Bieghler v. Kleppe, 633 F. 2d 531, 534 (9th Cir. 1980) (“As a general rule, summary judgment is inappropriate where an expert’s testimony supports the nonmoving party’s case.”).

[15] See Rice, 330 F. 3d 1170 (holding that district court did not abuse its discretion in disregarding the testimony of plaintiff ’s expert); Bethea v. Burnett, 2005 WL1720631, at *12 (C.D. Cal. 2005) (ignoring plaintiff’s expert’s testimony, finding it unhelpful to the court’s own analytic dissection); Shaw, 809 F. Supp. 1393 (disregarding plaintiff ’s expert’s testimony in overturning jury verdict in favor of plaintiff); Funky Films, 462 F.3d at 1076 (“[T]he district court conducted an independent analysis of [the works].”); Gable v. National Broadcasting Co., 727 F. Supp. 2d 815, 836, footnote 18 (C.D. Cal. 2010) (“Expert testimony is far less critical in a case like this than it is in a case where specialized knowledge is required to dissect the objective components of the copyrighted work.”).

[16] In re Apple Sec. Litig., 886 F.2d 1109, 1442 (9th Cir. 1989) (citing Brown Bag Software, 960 F.2d at 1475); Shaw, 919 F.2d at 1357 (“[T]he extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to measure expression subjectively”) (emphasis added).

[17] Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).

[18] See e.g., Gregory v. Murphy, 1991 U.S. App. LEXIS 4893 (9th Cir. 1991) (summary judgment for defendant affirmed) (Coming to America); Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. 1992) (upon remand, judgment as a matter of law in favor of defendant studio) (The Equalizer); Pelt v. CBS, Inc., 1993 U.S. Dist. LEXIS 20464 (C.D. Cal. 1993) (summary judgment for defendant) (Listen Up! Young Voices for Change); Kouf v. Walt Disney Pictures and Television, 16 F.3d 1042 (9th Cir. 1994) (summary judgment for defendant affirmed) (Honey, I Shrunk the Kids); Lane v. Universal City Studios, 1994 U.S. App. LEXIS 23769 (9th Cir. 1994) (summary judgment for defendants affirmed) (Kojak: Fatal Flaw); Ostrowski v. Creative Artists Agency, 1994 U.S. App. LEXIS 23732 (9th Cir. 1994) (summary judgment for defendant affirmed) (To Forget Palermo); Kodadek v. MTV Networks, 1996 U.S. Dist. LEXIS 20776 (C.D. Cal. 1996) (summary judgment for defendant) (Beavis & Butthead); Weygand v. CBS, 1997 U.S. Dist. LEXIS 19613 (C.D. Cal. 1997) (summary judgment for defendant) (Charlie); Laskay v. New Line Cinema, 1998 U.S. App. LEXIS 23461 (C.D. Cal. 1998) (summary judgment for defendant) (Don Juan DeMarco); Grosso v. Miramax Film Corporation, 2001 U.S. Dist. LEXIS 26199 (C.D. Cal. 2001) (summary judgment for defendant) (Rounders); Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129 (C.D. Cal. 2001) (summary judgment for defendant) (The Peacemaker); Rice v. Fox Broadcasting Company, 330 F.3d 1170 (9th Cir. 2003) (summary judgment for defendant affirmed) (The Mystery Magician); Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (jury verdict in favor of defendant studio), aff’d, Metcalf v. Bochco, 200 Fed. Appx. 635 (9th Cir. 2006) (City of Angels); Flynn v. Surnow, 2003 U.S. Dist. LEXIS 26973 (C.D. Cal. 2003) (summary judgment for defendant) (24); Bethea v. Burnett, 2005 WL 1720631 (C.D. Cal. 2005) (summary judgment for defendant) (The Apprentice); Merrill v. Paramount Pictures Corporation, 2005 U.S. Dist. LEXIS 45401 (C.D. Cal. 2005) (summary judgment for defendant) (Crossroads); Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D. Cal. 2005) (summary judgment for defendant) (The Matrix); Funky Films v. Time Warner Entertainment, 462 F.3d 1072 (9th Cir. 2006) (summary judgment for defendant) (Six Feet Under); Benjamin v. Walt Disney Company, 2007 U.S. Dist. LEXIS 91710 (C.D. Cal. 2007) (summary judgment for defendant) (Sweet Home Alabama); Lassiter v. Twentieth Century Fox Film Corporation, 238 Fed. Appx. 194 (9th Cir. 2007) (summary judgment for defendant affirmed) (Drumline); Zella v. E. W. Scripps Company, 529 F. Supp. 2d 1124 (C.D. Cal. 2007) (defendant’s motion to dismiss granted) (Rachael Ray); Mestre v. Vivendi Universal U.S. Holding Co., 273 Fed. Appx. 631 (9th Cir. 2008) (summary judgment for defendant affirmed) (Billy Elliot); Milano v. NBC Universal, Inc., 584 F. Supp. 2d 1288 (C.D. Cal. 2008) (summary judgment for defendant) (The Biggest Loser); Rosenfeld v. Twentieth Century Fox Film, 2009 U.S. Dist. LEXIS 9305 (C.D. Cal. 2009) (summary judgment for defendant) (Robots); Thomas v. Walt Disney Company, 337 Fed. Appx. 694 (9th Cir. 2009) (defendant’s motion to dismiss affirmed) (Finding Nemo); Benay v. Warner Bros. Entertainment, Inc., 607 F.3d 620 (9th Cir. 2010) (summary judgment for defendant affirmed) (The Last Samurai); Buggs v. Dreamworks, Inc., 2010 U.S. Dist. LEXIS 141515 (C.D. Cal. 2010) (summary judgment for defendant) (Flushed Away); Clements v. Screen Gems, Inc., 2010 U.S. Dist. LEXIS 132186 (C.D. Cal. 2010) (summary judgment for defendant) (Stomp the Yard); Gable v. National Broadcasting Co., 727 F. Supp. 2d 815 (C.D. Cal. 2010) (summary judgment for defendant) (My Name Is Earl); Gilbert v. New Line Productions, 2010 U.S. Dist. LEXIS 27134 (C.D. Cal. 2010) (summary judgment for defendant) (Monster in Law); Novak v. Warner Bros Pictures, LLC, 387 Fed. Appx. 747 (9th Cir. 2010) (summary judgment for defendant affirmed) (We Are Marshall); Walker v. Viacom International, Inc., 2010 U.S. App. LEXIS 1475 (9th Cir. 2010) (summary judgment for defendant) (SpongeBob SquarePants); Wild v. NBC Universal, Inc., 2013 U.S. App. LEXIS 4169 (9th Cir. 2013) (summary judgment for defendant affirmed) (Heroes).